Industrial Relations Commission of New South Wales CITATION : Huxley v Newcastle City Spares Pty Ltd [2003] NSWIRComm 246 APPLICANT PARTIES : Stephen Boyd Huxley RESPONDENT Newcastle City Spares Pty Ltd FILE NUMBER: IRC 2433 of 2003 CORAM: Harrison DP CATCHWORDS : Application re unfair dismissal pursuant s84 - respondent failed to appear in arbitration - matter heard ex parte - termination of employment retaliation for refusal to invest in business - found harsh, unreasonable and unjust - compensation awarded LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 08/05/2003 DATE OF JUDGMENT: 08/08/2003 APPLICANT Mr John Wormington, Counsel LEGAL REPRESENTATIVES: RESPONDENT No appearance JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 8 August 2003 Matter No IRC 2433 of 2003 STEPHEN BOYD HUXLEY AND NEWCASTLE CITY SPARES PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2003] NSWIRComm 246 1 The application in this matter was filed on 6 May 2003 and subject to Conciliation and Directions proceedings on 21 May 2003. 2 It was established that the matter could not be settled by agreement between the parties and Directions issued to bring the matter to hearing on 5 August 2003. 3 On Hearing Mr J Wormington of Counsel appeared on behalf of the applicant, Mr Stephen Huxley. There was no appearance on behalf of the respondent, Newcastle City Spares Pty Ltd. Advice was received by telephone from Mr S Rayfield, solicitor of Rayfield Lawyers informing the Commission that he no longer represented the respondent, but had contacted the respondent on the morning of proceedings, 5 August 2003, who withdrew his instructions and advised him that there was no intention to appear, asserting that the business no longer existed. 4 There is no other communication to the Commission. 5 Mr Wormington pressed the matter to Hearing ex parte by application in those terms. The matter proceeded. 6 Mr Wormington brought evidence from the applicant. THE EVIDENCE 7 The applicant's evidence is that in February 2002 he was approached by Mr McKee, Managing Director of the respondent, to work for approximately three to four weeks while the then Manager, Mr Gregory Garth, underwent medical procedures. The applicant's evidence is that the arrangement continued beyond the initial expectation and that by June or July 2002 he was working a forty hour week, Monday to Friday, 9am to 5pm with overtime as required on Saturdays and Sundays. The applicant states his earnings at $586.00 per week without overtime. 8 The applicant's evidence is that he was approached by Mr McKee to buy 20% of the business and he was aware that another person was offered 9% of the business. The applicant's evidence is that the ownership structure sought was for him to hold 20%, Mr Garth to hold 20%, another person to hold 9% and Mr McKee would retain controlling share of 51%. This arrangement did not come to fruition. 9 The applicant's evidence is that he continued to work in the business under the direction of Mr Garth as Manager and that Mr McKee continued to seek investment from himself and others. The applicant deposes that he received advice from his accountant not to invest in the business due to a perception that arrears of rent and loan repayments on a vehicle remained outstanding. 10 The applicant's evidence is that on 11 April 2003 he informed Mr McKee that he would not invest in the business. The applicant describes the termination of his employment at paragraph 11 of his affidavit of evidence (Exhibit 1) in the following terms: On Monday the 14 of April 2003, Brian came to the workplace about and said, "I'm giving you two weeks notice if you can't make it work for yourself you can't make it work for me. I've got some other ideas and Chris Mascord will be the new Manager". During the course of my employment Brian never once approached me about my work and said I was an asset to the business. 11 The applicant's evidence is that he has suffered severe financial hardship as a result of the termination of his employment and has been unable to find alternative employment despite strenuous efforts in response to newspaper advertisements and through the Commonwealth Employment Service. CONSIDERATION 12 Mr Wormington submitted that the termination of the applicant's employment was harsh, unreasonable and unjust as it arose purely as an act of retribution against the applicant for declining to further invest in the respondent business. 13 The facts are not contested and on the evidence before me I conclude that the termination of the applicant's employment was harsh, unreasonable and unjust. 14 I determine that neither reinstatement nor re-employment are practical and accordingly determine compensation at $10,000 (ten thousand dollars) having regard to the reasons for termination and the hardship emanating therefrom. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 8 August 2003 Matter No IRC 2433 of 2003 STEPHEN BOYD HUXLEY AND NEWCASTLE CITY SPARES PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Newcastle City Spares Pty Ltd is ordered to pay Mr Stephen Boyd Huxley the amount of $10,000 (ten thousand dollars) within 21 days of the date of this decision. I so order. The Hon. R W Harrison Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.